Healthcare reform: its déjà vu all over again. Once again we are in limbo. Once again a monumental effort to change our healthcare system may dissipate into the netherworld of failed legislative history. After months of negotiation, argument and political maneuvering, we have a transformational reform structure detailed in two similar but different bills; one from the House and one from the Senate. Yet the twists of political fate have left the outcome of this effort extremely uncertain. Because of this slight political shift in the division of the Senate and the arcane and restrictive rules of Congress, the passage of global health reform has become increasingly unlikely since the middle of January. However, even if these bills fail, the impact of this legislative effort will resonate for years. Within the provisions of this legislation are a treasure trove of healthcare concepts and programs that will likely form the basis of healthcare legislative and regulatory efforts for the next several years.

As if the holidays and looming February 17, 2010 deadline for HITECH was not enough, the federal Department of Health and Human Services (DHHS) issued two inter-related rules regarding the adoption of electronic health records (EHRs) on December 30, 2009 to further encourage health care entities to comply with HIPAA privacy and security rules. Both rules stem from requirements imposed upon DHHS in the American Recovery and Reinvestment Act (ARRA), signed into law on February 17, 2009.

“Meaningful Use” Rules

The first set of rules begins to define what qualifies as “meaningful use” of EHRs. Meaningful use of EHRs is important for eligible health care providers (such as non-hospital based physicians and hospitals) who wish to receive financial incentives from the Medicare or Medicaid programs for adopting EHRs. Specifically, eligible providers must be a meaningful EHR user for the relevant EHR reporting period in order to qualify for the incentive payment for a payment year. Starting in 2011, these incentive payments can amount up to $44,000 for physicians and possibly millions of dollars for hospitals over the course of a four-year period.

Effective peer review is an essential tool for improving healthcare quality. Congress acknowledged as much when it enacted the Health Care Quality Improvement Act of 1986 (HCQIA), which provides immunity to peer review bodies where certain conditions are met. Yet questions frequently arise as to how hospitals and other healthcare facilities should administer peer review processes to satisfy these conditions and preserve immunity while at the same time dealing with medical staff problems expeditiously. A recent decision by the United States Court of Appeals for the Fourth Circuit, Wahi v. Charleston Area Medical Center, affirms the strength of HCQIA immunity and provides some helpful guidance to hospital and medical staff leaders. Now, following the Supreme Court’s January 19th denial of a petition for writ of certiorari in the case, the Fourth Circuit’s decision stands as one of the most important peer review decisions post- Poliner.

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